Roberts no threat to privacy rights

September 05, 2005|By Steve Chapman

CHICAGO - Privacy is one of those things, like the Ten Commandments, that Americans revere without necessarily feeling the need to observe. We are not terribly insistent on our privacy: Sit down next to a perfect stranger on an airplane and you might get a report on her miserable childhood before the wheels are up. Nor do we get hung up on the privacy of others, judging from all the slick magazines we buy to learn intimate secrets of the stars.

But it's a bad idea to be seen as the sworn enemy of privacy, just as it's unwise to publicly disparage what God said to Moses. So in the fight over Judge John G. Roberts Jr.'s U.S. Supreme Court nomination, opponents are trying to cast him as Robert H. Bork with fashion sense - the sort of guy who would burst into your bedroom, rifle through your dresser and ask what you're doing under the sheets.

The best example is a TV ad put out by NARAL Pro-Choice America. It opens with "Privacy" emblazoned across the screen and proceeds to suggest that if Judge Roberts has his way, the only place you'll find it is in the dictionary.

"John Roberts dismisses one of our established liberties as the so-called right to privacy," says the narrator, as we see an attractive couple holding hands. "Roberts' legal record raises questions on whether he accepts the right to privacy." Subliminal message: If Judge Roberts gets to the Supreme Court, couples will not be allowed to hold hands.

To the average person, the right to privacy might mean any number of things. To NARAL, though, it denotes something more specific: the unrestricted right to abortion.

"Pro-choice" groups, however, know that this is the least popular of the prerogatives alleged to fall in the zone of privacy. So if Judge Roberts is to be defeated, he must be depicted as the enemy of privacy in all its forms.

As interpreted by the Supreme Court, the safeguards for the right to be left alone include a range of matters.

At one end are those aspects clearly covered by explicit constitutional guarantees, such as those barring unreasonable searches, forced self-incrimination and the quartering of soldiers. Even his worst enemies don't expect Judge Roberts to obliterate the Fifth Amendment or let the Marines take over your guestroom. When it comes to police searches, the court has largely resolved most of the important issues and is not likely to reopen them.

At the other end of the spectrum are those matters the Constitution doesn't mention. The weakest basis is for abortion rights, which the Supreme Court shoehorned into the privacy sphere like someone cramming 10 pounds of potatoes into a 5-pound bag. No one knows if Judge Roberts would vote to overturn that precedent.

But to say he might reject the weakest case covered by the privacy doctrine does not make him the enemy of privacy. He did once refer to the "so-called right to privacy," but that was in reference to abortion, so he might have been disparaging the unreasonable scope of the right, not its essence.

Even if he were skeptical about the concept, Judge Roberts has as much chance of rolling back the court's crucial decisions as he has of winning the Miss America pageant.

The first big privacy ruling, in 1965, said Connecticut could not make it a crime for married couples to use contraceptives. The court's effort to explain its decision bordered on the comical. Justice William O. Douglas claimed to have located this newly formulated right to privacy not in specific constitutional guarantees but in "penumbras, formed by emanations from those guarantees." If that sounds like pure vapor, that's because it is.

If you think Judge Roberts intends to let states ban the sale of contraceptives, I have some Florida swamp land you might want to buy. For that matter, it's hard to picture a more conservative Supreme Court overruling the 2003 decision that struck down laws against homosexual sodomy. Decisions such as those, which match a durable public consensus, are here to stay.

Despite what NARAL says, Judge Roberts presents no discernible threat to the kind of privacy most of us cherish. With him on the court, you can expect to keep doing whatever you want behind closed doors. And in public, feel free to hold hands.

Steve Chapman is a columnist for the Chicago Tribune, a Tribune Publishing newspaper. His column appears Mondays and Wednesdays in The Sun.

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